Balkinization: It’s Not About What You Know: An Overview of Hyperlink Law’s Troubles

It’s Not About What You Know: An Overview of Hyperlink Law’s Troubles

Guest Blogger

New Controversies in Intermediary Liability Law

Jacob Rogers

The law related to hyperlinks is breaking. Hyperlinks are a system for directing readers around the internet, but the rules vary by the location of whoever makes the link. People use the links once and move on, but the rules seem headed towards active link monitoring. The internet treats hyperlinks as all of a kind, but courts are breaking them down by type, content, and specialty.

In the metaphor of the internet as highway, hyperlinks are the forks, side roads, and driveways into the unknown for the online traveler. Sometimes they are neglected and become overgrown. Other times they lead to a hidden gem. Yet other times still there’s a massive pothole the second you turn the corner. Most often, hyperlinks provide valuable information for the explorer, directing them to sources, background, context, or the endless rabbit holes of exploring related topics. Anyone that has come up for air after a few hours on a deep wiki-walk is familiar with this use of hyperlinks and the way they can make it easy to traverse the internet. A second type of hyperlink is used for humor, surprising the reader with the result or the mouseover text previewing where the link is going. Some hyperlinks can be embedded via various technologies to appear on the page to show a preview of what is coming without the need to leave the current URL, and at times the presence or absence of that preview depends on the user’s settings (such as whether their browser allows a website to load images). A small handful of hyperlinks are harmful as well, tricking the reader into intentionally visiting a site with malware or spyware that aims to steal information or wreck their computer.

The law, however, does not distinguish effectively between the many ways hyperlinks are used online. Rather, the law on hyperlinking has split by region in different ways. In the United States, the law is currently in flux and has focused mostly around liability for copyrights. Perfect 10 v. Amazonestablished what’s known as the “server test.” In Perfect 10, Google thumbnail images that acted as hyperlinks linking back to full size originals were found not to infringe copyright law, in significant part because the full size images were not on Google’s servers and therefore had not been copied. However, in a recent case, Goldman v. Breitbart, the court held that the fact that a picture of Tom Brady was visible on a Breitbart web page to the reader was enough for copyright infringement.(The link in this case was an “embedded” image, meaning that the reader would see the image on Breitbart without Breitbart making a copy of it. Technologically, that occurred by instructing the user’s browser to access it from Twitter directly.) It’s currently unclear where U.S. law is headed and what the legal basis might be for linking to images.

In Europe, the law attempts to distinguish the lawfulness of a hyperlink based on the knowledge of the person who created the link, following the recent GS Media case. However, GS Media overwhelms its knowledge standard with an additional rule that website creators who attempt to make money must carry out an investigation of what they link to and will be presumed to have knowledge of the content behind a hyperlink. While this does not affect every site, such a large number of sites either have minor advertising or encourage users to make some kind of purchase that it impacts a tremendous part of the internet. Europe also has a further complication for copyrighted works in which they consider whether and where the work was already accessible online. If something was already freely available and a link does not meaningfully change who can access it, it may not violate copyright because there was not a publication to a “new public.”

These various standards are problematic because they change hyperlinks from something easy to use into something complicated. While judicial attempts to force changes in behavior can sometimes be effective, hyperlinks are widely used by the general public in a way that is not consistent with either U.S. standards for copyrighted works or European standards for presumed knowledge. The likely result of these cases is either that many people will violate the law unknowingly or that large companies will be forced to implement various blunt technological measures to limit use of hyperlinks, harming online discourse and greatly adding to the difficulty of finding smaller websites that are not already well-known. U.S. law, in particular, is making it increasingly more difficult to share media online without paying licensing fees of some sort, despite the fact that a substantial majority of the population does share all types of media constantly from site to site.

GS Media’s knowledge standard and Svensson’s “new public” ideas might be on the right track if they were made to more closely fit existing industry practices and consumer expectations, rather than try to change the behavior of the public. We do trust that someone posting a link is not attempting to harm our computers or luring us into committing crimes. Therefore it can be reasonable to hold someone liable for their links if the link and its context show that they knew (or clearly should have known) that they were leading people to something harmful. But we do not and courts should not require someone making a hyperlink to investigate broadly or continually monitor their hyperlinks to ensure that nothing changes in a way that becomes illegal. Nor should site owners be held strictly liable because they make money when context and content do not make it clear that the owner meant actual harm. As the roads of the internet, hyperlinks should be treated akin to road construction: a construction crew might be liable for building a faulty road, but they are not liable years later when the owner of the property allows it to become overgrown.

Jacob Rogers is Senior Legal Counsel at the Wikimedia Foundation. His work includes international litigation, government requests and Trust & Safety work for the Wikimedia Foundation across multiple jurisdictions. He can be reached at jrogers at wikimedia.org.

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